KIDNAPPING - PERMANENT DEPRIVATION OF
CUSTODY
N.J.S.A. 2C:13-1b(4) 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 [the purpose to]
permanently deprive a parent, guardian, or other lawful custodian of custody of
the victim.
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:
1.
That the defendant (select as
appropriate):
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)
2.
That the removal (or confinement) was
with the purpose to permanently deprive a
parent, guardian, or other lawful custodian of custody of the victim.
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 WHEN ELEMENT 1 c. OR d. IS ALLEGED)
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.
[CHARGE IN ALL CASES]
The second element that the State is
required to prove beyond a reasonable doubt is that the removal (and/or confinement)
was with the purpose to permanently deprive a parent, guardian, or other lawful
custodian of custody of the victim. A
“parent” means a parent, guardian or other lawful custodian of a minor child.[6] “Permanently deprive" means unlawfully
taking (a child) (children) with the purpose of raising the child[ren] as one's
own.
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.[7]
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 to permanently
deprive a parent, guardian, or other lawful custodian of custody of the
victim. 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.
AFFIRMATIVE DEFENSES
[Charge when applicable; select appropriate
section(s)]
In this matter, the defendant has
presented evidence that the taking, detaining, enticing or concealing of the
minor child[ren] was done for the following reason(s):
1. The
defendant reasonably believed that the action was necessary to preserve the
child (or children) from imminent danger to (his/her/their) welfare. However, this defense is not available if the
defendant did not, as soon as reasonably practicable but in no event more than
24 hours after taking (detaining, enticing, or concealing) a child (or children)
under his/her
protection, give notice of the child’s (or children’s) location to the police
department of the municipality where the child[ren] resided, the office of the
county prosecutor in the county where the child[ren] resided, or the Division
of Youth and Family Services in the Department of Human Services; or
2. The
defendant reasonably believed that the taking or detaining of the minor
child[ren] was consented to by the other parent, or by an authorized State
agency; or
3. The
child[ren], being at the time of the taking or concealment not less than 14
years old, was/were taken away at (his/her/their) own volition and without
purpose to commit a criminal offense with or against the child[ren].
[CHARGE FOLLOWING PARAGRAPHS WHEN
SUBSECTIONS 1 OR 2 ARE ALLEGED:]
“Reasonably believes” designates a
belief the holding of which does not make the actor reckless or criminally
negligent.[9]
A person acts recklessly when he/she
consciously disregards a substantial and unjustifiable risk that the material
element exists or will result from his/her
conduct. The risk must be of such a nature and degree that, considering the
nature and purpose of the actor’s conduct and the circumstances
known to him/her, its disregard involves a gross deviation from the standard of
conduct that a reasonable person would observe in the actor’s situation.[10]
A person acts negligently when he/she
should be aware of a substantial and unjustifiable risk that the material element
exists or will result from his/her
conduct. The risk must be of such a nature and degree that the actor’s failure
to perceive it, considering the nature and purpose of his/her
conduct and the circumstances known to him/her, involves a gross deviation from the standard of care that a
reasonable person would observe in the actor’s situation.[11]
An actor is “reckless” or
“criminally negligent” when the actual result must be within the risk of which
the actor is aware or, in the case of criminal negligence, of which he/she
should be aware, or, if not, the actual result must involve the same kind of
injury or harm as the probable result and must not be too remote, accidental in
its occurrence, or depend on another’s volitional act to have a just bearing on
the actor’s liability or on the gravity of his behavior.[12]
The defendant must prove this
defense by clear and convincing evidence. By clear and convincing evidence, I
mean evidence which produces in your minds a firm belief as to the truth of the
precise fact being asserted. This is a lesser burden of proof than beyond a
reasonable doubt. Evidence may be uncontroverted, but yet not clear and
convincing. On the other hand, evidence may be clear and convincing even in the
absence of corroboration, and even if it has been contradicted. Although the burden rests upon the defendant
to establish this affirmative defense by proof of clear and convincing
evidence, the burden of proving the defendant guilty of the offense charged
here beyond a reasonable doubt is always on the State, and that burden never
shifts.
If you are satisfied by clear and
convincing evidence that the defendant has established the affirmative defense
just mentioned above, then you must find defendant not guilty.
Affirmative Defense II
(Available only to custodial parent)[13]
It is an affirmative defense to this prosecution that the
defendant, a parent having the right of custody, reasonably believed that he/she
was fleeing from imminent physical danger from ______ (the other parent),
provided that the defendant, as soon as reasonably practicable:
1. Gives
notice of the child’s (or children’s) location to the police department of the
municipality where the child resided, the office of the county prosecutor in
the county where the child resided, or the Division of Youth and Family
Services in the Department of Human Services; or
2. Commences
an action affecting custody in an appropriate court.
“Reasonably believes” designates a
belief the holding of which does not make the actor reckless or criminally
negligent.[16]
A person acts recklessly when he/she
consciously disregards a substantial and unjustifiable risk that the material
element exists or will result from his/her
conduct. The risk must be of such a nature and degree that, considering the
nature and purpose of the actor’s conduct and the circumstances
known to him/her, its disregard involves a
gross deviation from
A
person acts negligently when he/she
should be aware of a substantial and unjustifiable risk that the material element
exists or will result from his/her
conduct. The risk must be of such a nature and degree that the actor’s failure
to perceive it, considering the nature and purpose of his/her
conduct and the circumstances known to him/her, involves a gross deviation from the
standard of care that a reasonable person would observe in the actor’s situation.[18]
An actor is “reckless” or
“criminally negligent” when the actual result must be within the risk of which
the actor is aware or, in the case of criminal negligence, of which he/she
should be aware, or, if not, the actual result must involve the same kind of
injury or harm as the probable result and must not be too remote, accidental in
its occurrence, or depend on another’s volitional act to have a just bearing on
the actor’s liability or on the gravity of his behavior.[19]
If the State has failed to disprove
any element of this affirmative defense beyond a reasonable doubt,[20]
then you must find the defendant not guilty.
[CHARGE IN ALL CASES]
If you are satisfied, beyond a
reasonable doubt, that the State has proven each of the elements of this
offense, as I have defined them to you, [and you have found that the defendant
has not proven by clear and convincing evidence the existence of the
affirmative defense,[21]]
or, [and you have found that the State has disproved an element of the
affirmative defense beyond a reasonable doubt[22]], then you must find the
defendant guilty. If you find, however,
that the State has failed to prove any of the elements of the crime beyond a
reasonable doubt [or, if you have found by clear and convincing evidence that
the defendant has proven the affirmative defense,[23]] or, [if you are satisfied
that the State has not disproved any element of the affirmative defense beyond
a reasonable doubt[24]], then you must find the
defendant not guilty.
[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.[25] The
“harm” component can include physical, emotional, or psychological harm.[26]
In this case, the State alleges that defendant [describe conduct allegedly
constituting harm[27]
or release in an unsafe place]. [INCLUDE
WHEN APPROPRIATE: On the other hand, defendant contends that ___________.]
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 conduct if he/she
is aware that it is practically certain that his/her
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 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.
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:
(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.
[1] N.J.S.A. 2C:13-1d. But see State v. Froland, 193 N.J.
186, 188 (2007), in which the Court held that absent the use of "force,
threat or deception" under N.J.S.A. 2C:13-1d, "a party who
acts with the permission of a parent is not guilty of non-consent
kidnapping" under this statute.
Defendant, step-mother of children who were removed by their
non-custodial parent without the
custodial parent's consent, "could not be convicted of kidnapping because
she had the consent of [one] who is clearly a 'parent' within the meaning of
the statute. Rather, both of them were
subject to prosecution under the interference with custody statute [N.J.S.A.
2C:13-4a]." Id. at 201.
[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.
[8] N.J.S.A. 2C:13-1e. The affirmative defenses set forth in this
subsection must be proved by the defendant by clear and convincing evidence.
[13] N.J.S.A. 2C:13-1f. Unlike N.J.S.A. 2C:13-1e, this
subsection does not place a burden on the defendant; rather, it requires the
State to disprove the defense alleged. This distinction is noted throughout the
text and the associated footnotes.
[15] See
Model Jury Charge for Simple Assault (Physical Menace/Substantial Step)
(Lesser Included) (N.J.S.A. 2C:12-1a(3)).
[25] State v. Sherman,
367 N.J. Super. 324, 330 (App. Div. 2004), certif. denied, 180 N.J.
356 ( 2004).
[27] "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.
[28] In State
v. Johnson, 309 N.J. Super. 237, 265 (App. Div.), certif. denied,
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.’”
