KIDNAPPING
(N.J.S.A.
2C:13-1b(1) to (3)) model jury charge
(Read Indictment)
The pertinent part of the statute on
which this indictment is based reads as follows:
A person is guilty of kidnapping if he
unlawfully removes another from his place of residence or business, or a
substantial distance from the vicinity where he is found, or if he unlawfully
confines another for a substantial period, with any of the following purposes:
1. to facilitate commission of any crime
or flight thereafter;
2. to inflict bodily injury on or to
terrorize the victim or another; or
3. to interfere with the performance of
any governmental or political function.
In order for you to find the defendant
guilty of kidnapping, the State is required to prove each of the following two
elements to you beyond a reasonable doubt:
(Select as appropriate)
1.
That the defendant __________:
a. unlawfully removed __________, from (his/her)
place of residence... or
b. unlawfully removed __________, from (his/her)
place of business... or
c. unlawfully removed __________, a substantial
distance from the vicinity where (he/she)
was found... or
d. unlawfully confined __________, for a
substantial period;
(and)
(Select as appropriate)
2.
That the removal (or confinement) was with the purpose to...
a. facilitate the commission of any crime or
flight thereafter...
b. inflict bodily injury on or terrorize the
victim or another...
c. interfere with the performance of any
governmental or political function.
In relation to the first element you will
note that I have used the term(s) "unlawfully removed" and/or
"unlawfully confined".
(IF THE PERSON ALLEGED TO HAVE BEEN REMOVED OR
CONFINED IS 14 YEARS
OF AGE OR OLDER, AND NOT INCOMPETENT USE THE
FOLLOWING)
A removal (or confinement) is
"unlawful" if it is accomplished by force, threat or deception.[1]
(IF THE PERSON REMOVED OR CONFINED IS UNDER
THE AGE OF 14
OR
INCOMPETENT, USE THE FOLLOWING)
In the case of a person who is under the
age of 14 or who is incompetent, a removal (or confinement) is
"unlawful" if it is accomplished without the consent of a parent,
guardian, or other person responsible for the general supervision of (his/her)
welfare.[2]
(CHARGE AS APPROPRIATE)
When the removal of a victim is from a
place other than the victim's residence or place of business, the removal must
be to another place which is a "substantial distance" from the
vicinity from which the victim was removed.
However, for this purpose a "substantial distance" is not
measured in feet, yards, or miles, nor by any other standard of linear
measurement. Rather, a "substantial
distance" is one that is significant, in that it is more than incidental
to the underlying crime and substantially increases the risk of harm to the
victim. That increased risk of harm must
not be trivial. If the victim is removed
only a slight distance from the vicinity from which he or she was removed and
such movement does not create the isolation and increased risk of harm that are
at the heart of the kidnapping statute, then you should not convict the
defendant of the kidnapping charge.[3]
Unlawful confinement must be for a
"substantial period." However,
for this purpose a "substantial period" is not measured in seconds,
minutes or hours, nor by any other standard based strictly on the passage of
time. Rather, a "substantial
period" is one that is significant, in that it is more than incidental to the
underlying crime and substantially increases the risk of harm to the victim.
That increased risk of harm must not be trivial. If the victim is confined for only a slight
period of time and such confinement does not create the isolation and increased
risk of harm that are at the heart of the kidnapping statute, then you should
not convict the defendant of the kidnapping charge.[4]
Therefore, in determining whether the
removal (and/or confinement) was substantial, you may consider[5]
(1)
the distance of the removal (and/or the duration of confinement);
(2)
whether the removal (and/or confinement) occurred during the commission
of a separate offense;
(3) whether the removal (and/or
confinement) which occurred is inherent in the separate offense; and
(4) whether the removal (and/or
confinement) created a significant danger to the victim independent of that
posed by the separate offense.
The second element that the State is
required to prove is:
that the removal
(and/or confinement) was with the purpose to ...
a. facilitate the commission of any crime or
flight thereafter... or
b. inflict bodily injury on or terrorize the
victim or another... or
c. interfere with the performance of any
governmental or political function.
I have told you that to constitute
kidnapping, an unlawful removal or confinement must have been with a specified
purpose. Therefore, I must define
purpose for you.
A person acts purposely with respect to
the nature of his/her conduct or a result of his/her conduct if it is his/her conscious object to engage in conduct of that nature or to
cause such a result, that is, if the person means to do what he/she does or to cause such a result. A person acts purposely with respect to
attendant circumstances if the person is aware of the existence of such
circumstances, or believes or hopes that they exist. "With purpose,"
"designed," "with design," or equivalent terms have the
same meaning.[6]
The nature of the purpose with which the
defendant acted towards the victim is a question of fact for the jury to
decide. Purpose is a condition of the
mind which cannot be seen, and can only be determined by inferences drawn from
the defendant's conduct, words or acts as they have been presented in the
evidence you have heard and seen in this case.
It is not necessary that the State produce a witness or witnesses to
testify that the defendant stated, for example, that his/her purpose in removing __________ (and/or) confining
__________, was
(Select appropriate section)
...to facilitate the commission of any
crime or flight thereafter, that is, to aid in committing a crime or fleeing
afterwards.
...to inflict bodily injury on or to
terrorize the victim or another.
...to interfere with the performance of
any governmental or political function.
It is within the power of the jury to
find that proof of purpose has been furnished beyond a reasonable doubt, by
inferences which you may draw from the nature of the acts and the circumstances
surrounding the conduct under investigation as they have been presented in the
evidence you have heard and seen in this case.
[CHARGE WHEN FIRST
DEGREE KIDNAPPING ALLEGED]
If you find
that the State has proven beyond a reasonable doubt that the defendant
committed the crime of kidnapping, you must go on to determine whether the
State has also proven beyond a reasonable doubt that he/she knowingly
harmed _________ or knowingly did not release _________ in a safe place prior
to his/her apprehension.[7] The "harm" component can include
physical, emotional or psychological harm.[8] In this case, the State alleges that
defendant [describe conduct allegedly constituting harm[9]
or release in an unsafe place]. [INCLUDE WHEN APPROPRIATE: On the other
hand, defendant contends that ___________.]
In order to determine whether the victim
was released in a safe place, you must
examine the totality of the circumstances and evaluate the evidence presented
at trial in its entirety. You may consider the following:
(1)
age of the victim and any other physical or mental condition of the
victim; [10]
(2)
the location, the conditions of the area, and the time of the release;
(3)
the circumstances surrounding the release; and
(4)
any other circumstances that occurred or existed surrounding the release.
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 conduct will cause such a result. "Knowingly," "with
knowledge," or equivalent terms have the same meaning.
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 an accused 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
inference 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.
[CHARGE
IN ALL CASES]
If you find that the State has not proven
any element of the crime of kidnapping beyond a reasonable doubt, then you must
find the defendant not guilty. If you
find that the State has proven every element beyond a reasonable doubt, then
you must find defendant guilty of kidnapping.
[CHARGE
WHEN FIRST DEGREE KIDNAPPING IS ALLEGED]
If you find that the State has proven beyond
a reasonable doubt that the defendant is guilty of kidnapping, but you have
reasonable doubt as to whether the
State has proven beyond a reasonable doubt that he/she knowingly
harmed _________ or knowingly did not release ________ in a safe place prior to his/her apprehension you should then find the defendant guilty of
kidnapping in the second degree.
If you find beyond a reasonable doubt
that the defendant is guilty of kidnapping and that he/she
knowingly harmed _________ or knowingly
did not release _________ in a safe place prior to his/her apprehension, you should then find the defendant guilty of
kidnapping in the first degree.
[4] State
v. Smith,
210 N.J. Super. 43, 60-61 (App. Div. 1986), certif. denied, 105 N.J.
582 (1986). State v. Deutsch, 229 N.J. Super. 374, 383, 387 (App.
Div. 1988). Cf. State v. Bryant, 217 N.J. Super. 72, 80-82 (App.
Div. 1987) certif. denied, 108 N.J. 202 (1987); State v.
LaFrance, 117 N.J. 583, 594 (1990).
[5] In
State v. LaFrance, 117 N.J. 583 (1990) the court suggested that
"future trials should reflect that we have emphasized that the charge to
the jury convey the elements of the crime in the factual context of the
case. Court and counsel should frame a
charge to the jury in which defendant's conduct is measured in terms of whether
the detention was merely incidental to the underlying crimes". State v. LaFrance at 594. The enumerated factors should only be charged
if relevant, and the trial judge may charge other factors where appropriate.
[7] State v. Sherman, 367 N.J.
Super. 324, 330-331 (App. Div. 2004), certif. denied, 180 N.J.
356 (2004).
[9] "We
conclude that the 'harm" component of the unharmed release provision
contained in N.J.S.A. 2C:13-1c[1] focuses on the conduct of the
kidnapper during the purposeful removal and holding or confining of the victim,
as distinguished from the type of harm inherent in every kidnapping." Sherman, 367 N.J. Super. at
330. The "harm" component can
include "physical, emotional or psychological harm." Id. at 331.
[10] In State
v. Johnson, 309 N.J. Super. 237, 265 (App. Div.), certif. den.
156 N.J. 387 (1998), the defendant carjacked a mother and her
three-year-old daughter, then put the daughter out of the car before driving
off with and subsequently robbing, raping, and killing the mother. The
Appellate Division held that the jury properly found “that separating an upset,
crying three year old child from her distraught mother and leaving her near the
bushes of a closed day care center after 9 p.m. on a rainy November night
hardly constitutes leaving her in a ‘safe place.’”