AGGRAVATED ASSAULT
(THROWING BODILY FLUID AT A CORRECTIONS EMPLOYEE)
(N.J.S.A. 2C:12-13) model jury charge
Count
of this indictment charges the defendant with
aggravated assault.
(Read appropriate count of indictment).
The applicable statute provides, in pertinent part, that:
[a] person who throws a bodily fluid at a Department of
Corrections employee, [or county corrections officer, juvenile corrections
officer, juvenile detention staff member, any sheriff, undersheriff or
sheriff’s officer or any municipal, county or State law enforcement officer]
while in the performance of his duties or otherwise purposely subjects such
employee to contact with a bodily fluid commits an aggravated assault.
In order for you to find the defendant guilty of this
offense, the State must prove each of the following elements beyond a
reasonable doubt:
1. that the defendant purposely[1] threw a
bodily fluid at (insert name of victim) or otherwise purposely subjected
(insert name of victim) to contact with a bodily fluid;
2. that (insert name of victim) was
a Department of Corrections employee [or county corrections officer, juvenile
corrections officer, juvenile detention staff member, any sheriff, undersheriff
or sheriff’s officer or any municipal, county or State law enforcement
officer];
3. that (insert name of victim) was
at the time engaged in the performance of (his/her) duties; and
4. that the defendant knew that (insert
name of victim) was a Department of Corrections employee [or county
corrections officer, juvenile corrections officer, juvenile detention staff
member, any sheriff, undersheriff or sheriff’s officer or any municipal, county
or State law enforcement officer] and that the defendant knew that (insert
name of victim) was at the time engaged in the performance of (his/her)
duties.[2]
The
first element that the State must prove beyond a reasonable doubt is that the
defendant purposely threw a bodily fluid at (insert name of victim), or
otherwise purposely subjected (insert name of victim) to contact with a
bodily fluid. “Bodily fluid” means saliva, blood, urine, feces, seminal fluid
or any other bodily fluid..[3]
A
person acts purposely with respect to the nature of his/her conduct or a
result thereof if it is a person's 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 a person is aware of the existence of such
circumstances or a person believes or hopes that they exist. One can be deemed
to be acting purposely if one acts with design, with a purpose, with a
particular object, if one really means to do what he/she does.[4]
The
second element that the State must prove beyond a reasonable doubt is that (insert
name of victim) was a Department of Corrections employee [or county corrections
officer, juvenile corrections officer, juvenile detention staff member, any
sheriff, undersheriff or sheriff’s officer or any municipal, county or State
law enforcement officer].
The
third element that the State must prove beyond a reasonable doubt is that (insert
name of victim) was engaged in the performance of the duties of (his/her)
office at the time.
[CHARGE WHERE APPROPRIATE]
“Department
of Corrections employee” means any Corrections officer, parole officer, or
other employee of the New Jersey Department of Corrections and any person under
contract to provide services to the department.[5]
[CHARGE IN ALL CASES]
The
fourth element that the State must prove beyond a reasonable doubt is that the defendant knew that (insert name
of victim) was a Department of Corrections employee [or county corrections
officer, juvenile corrections officer, juvenile detention staff member, any
sheriff, undersheriff or sheriff’s officer or any municipal, county or State
law enforcement officer] and that the defendant knew that such individual was
engaged in the performance of the duties of (his/her) office
at the time.
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.[6]
Purpose and knowledge are conditions of the mind that
cannot be seen and that can often be determined only from inferences from
conduct, words or acts. It is not necessary for the State to produce a witness
to testify that the defendant stated that he/she
acted with a particular state of mind. It is within your power to find that
proof of purpose or knowledge has been furnished beyond a reasonable doubt by
inferences that may arise from the nature of the acts and circumstances
surrounding the conduct in question.
If you find that the State has proven every element
beyond a reasonable doubt, then you must find the defendant guilty. If,
however, the State has failed to prove any element beyond a reasonable doubt,
then you must find the defendant not guilty.
[CHARGE WHERE APPROPRIATE]
If,
and only if, you find the defendant guilty of the crime charged beyond a
reasonable doubt, you must proceed to determine whether the State has proven
one additional element beyond a reasonable doubt, and that is whether (insert
name of victim) suffered bodily injury as a consequence of the defendant’s
conduct.[7]
“Bodily
injury” is defined as physical pain, illness, or any impairment of physical
condition.[8] Record
your finding as to this additional element in the place provided on your
verdict sheet.
[1] There is a question of statutory construction
as to the applicable culpability element under N.J.S.A. 2C:12-13 for one
who “throws” a bodily fluid. The absence of an explicitly stated culpability
requirement in the first portion of the statute could support an argument that
knowledge applies under N.J.S.A. 2C:2-2c(3), but a majority of the Model
Criminal Jury Charge Committee has concluded that the subsequent statutory
reference to purpose requires that purpose be applied to all material elements
of the offense under N.J.S.A. 2C:2-2c(1).
[2] State v. Green, 318 N.J. Super.
361, 376 (App. Div. 1999), aff’d. o.b. 163 N.J. 140 (2000) (the
defendant must know that the victim is a law enforcement officer). If
transferred intent is an issue, the charge should be modified accordingly. State
in the Interest of S.B., 333 N.J. Super. 236, 243 (App. Div. 2000).