AGGRAVATED SEXUAL ASSAULT model jury charge March 17, 2012

AGGRAVATED SEXUAL ASSAULT (MENTALLY INCAPACITATED)

(N.J.S.A.2C:14-2a(7)) (Offenses arising beforeMarch 17, 2012)model jury charge

Count of the indictment charges the defendant with aggravated sexual assault.

[READ COUNT OF INDICTMENT]

That section of our statutes provides in pertinent part:

An actor is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person whom the actor knew or should have known was[choose appropriate]physically helpless, mentally defective or mentally incapacitated.

In order to convict defendant of this charge, the State must prove the following elements beyond a reasonable doubt:

1. That the defendant committed an act of sexual penetration with another person.

2. That defendant acted knowingly.

3. That at the time of the penetration the victim was[choose appropriate]physically helpless, mentally defective or mentally incapacitated.

4. That defendant knew or should have known that at the time of the penetration the victim was[choose appropriate]physically helpless, mentally defective or mentally incapacitated.

The first element that the State must prove beyond a reasonable doubt is that defendant committed an act of sexual penetration with(name of victim).

According to the law,[choose appropriate]vaginal intercourse, cunnilingus, fellatio or anal intercourse between persons or insertion of the hand, finger or object into the anus or vagina, either by the defendant or by another person upon the defendants instruction, constitute(s) sexual penetration. Any amount of insertion, however slight, constitutes penetration; that is, the depth of insertion is not relevant.

[Choose the appropriate definition(s)]

The definition of vaginal intercourse is the penetration of the vagina, or[where

Page 1 of 4AGGRAVATED SEXUAL ASSAULT (MENTALLY INCAPACITATED) (N.J.S.A. 2C:14-2a(7) (Offenses arising before March 17, 2012)Page 2 of 4

appropriate]of the space between the labia majora or outer lips of the vulva.1

The definition of cunnilingus is oral contact with the female sex organ.2

The definition of fellatio is oral contact with the male sexual organ.3

The definition of anal intercourse is penetration of any depth into the anus.4

The second element that the State must prove beyond a reasonable doubt is that defendant acted knowingly. A person acts knowingly with respect to the nature of his/her conduct or the attendant circumstances if he/she is aware that the conduct is of that nature or that such circumstances exist or the person is aware of a high probability of their existence. A person acts knowingly with respect to a result of the conduct if he/she is aware that it is practically certain that the conduct will cause a result. Knowing, with knowledge, or equivalent terms have the same meaning.

Knowledge is a condition of the mind. It cannot be seen. It can only be determined by inferences from defendants 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 that the State produce witnesses to testify that an accused said that he/she had a certain state of mind when he/she did a particular thing. 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 conduct and from all he/she said and did at the particular time and place and from all surrounding circumstances established by the evidence.

The third element that the State must prove beyond a reasonable doubt is that at the time of the penetration,(name of victim)was[choose appropriate]physically helpless, mentally defective or mentally incapacitated.

1State v. J.A., 337N.J. Super. 114 (App. Div. 2001). The Appellate Division upheld the charge given by the trial court in that case which included the following language which can be used if the circumstances of the specific case are appropriate: This means that if you find from all of the evidence presented beyond a reasonable doubt that there was [penile] penetration to the outer area of the vaginal opening, what is commonly referred to as the vaginal lips, that is sufficient to establish penetration under the law.

2State v. Fraction, 206N.J. Super. 532, 535-36 (App. Div. 1985),certif. denied, 104N.J. 434 (1986). Penetration is not necessary for this act.

3State in the Interest of S.M., 284N.J. Super. 611, 616-19 (App. Div. 1995). Penetration is not necessary for this act.

4State v. Gallagher, 286N.J. Super. 1, 13 (App. Div. 1995),certif. denied, 146N.J. 569 (1996).AGGRAVATED SEXUAL ASSAULT (MENTALLY INCAPACITATED) (N.J.S.A. 2C:14-2a(7) (Offenses arising before March 17, 2012)Page 3 of 4

5N.J.S.A. 2C:14-1g.

6N.J.S.A. 2C:14-1h.

7State v. Olivio, 123N.J. 550, 563-64 (1991).

8N.J.S.A. 2C:14-1i.

Physically helpless means that condition in which a person is unconscious or is physically unable to flee or is physically unable to communicate unwillingness to act.5

Mentally defective means that condition in which a person suffers from a mental disease or defect which renders that person temporarily or permanently incapable of understanding the nature of (his/her) conduct, including but not limited to, being incapable of proving consent.6A person is mentally defective if, at the time of the sexual activity, the mental disease or defect rendered (him/her) unable to comprehend the distinctively sexual nature of the conduct, or incapable of understanding or exercising the right to refuse to engage in such conduct with another. It includes both the capacity to understand and the capacity to consent with respect to personal sexual activity. The capacity to consent involves knowing that ones body is private and is not subject to the physical invasions of another and that one has the right and ability to refuse to engage in sexual activity. The capacity to understand, which is part of the idea of the capacity to consent, involves the knowledge that the conduct is distinctively sexual. Here, that knowledge extends only to the physical or physiological aspects of sex; it does not extend to an awareness that sexual acts may be morally right or wrong and have probable serious consequences, such as pregnancy and birth, disease, infirmities, adverse psychological or emotional disorders.7

Mentally incapacitated means that condition in which a person is rendered temporarily incapable of understanding or controlling (his/her) conduct due to the influence of a narcotic, anesthetic, intoxicant, or other substance administered to that person without (his/her) prior knowledge or consent, or due to any other act committed upon that person which rendered that person incapable of appraising or controlling (his/her) conduct.8

The fourth element that the State must prove beyond a reasonable doubt is that defendant knew or should have known that the(name of victim)was[choose appropriate]physically helpless, mentally defective or mentally incapacitated.

If you find that the State has proven beyond a reasonable doubt each of these four elements, then you must find the defendant guilty of the crime of aggravated sexual assault. On the otherAGGRAVATED SEXUAL ASSAULT (MENTALLY INCAPACITATED) (N.J.S.A. 2C:14-2a(7) (Offenses arising before March 17, 2012)Page 4 of 4

hand, if you find that the State has failed to prove any of these elements beyond a reasonable doubt, then you must find the defendant not guilty of aggravated sexual assault.

(Continue to lesser included offenses where required)

AGGRAVATED SEXUAL ASSAULT model jury (N.J.S.A. 2C:14-2a(4)

AGGRAVATED SEXUAL ASSAULT

(N.J.S.A.2C:14-2a(4)) weapon model jury charge

Count of the indictment charges the defendant with aggravated sexual assault.[READ COUNT OF INDICTMENT].

That section of our statutes provides in pertinent part:

An actor is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person when he is armed with a weapon or any object fashioned in such a manner as to lead the victim to reasonably believe it to be a weapon and threatens by word or gesture to use the weapon or object.

In order to convict defendant of this charge, the State must prove the following elements beyond a reasonable doubt:

1. That the defendant committed an act of sexual penetration with another person.

2. That the defendant acted knowingly.

3. That at the time of the penetration the defendant was armed with a weapon or any object fashioned in such a manner as to lead the victim to reasonably believe it to be a weapon.

4. That the defendant threatened the victim by word or gesture to use the weapon or object.

The first element that the State must prove beyond a reasonable doubt is that defendant committed an act of sexual penetration with(name of victim).

According to the law,[choose appropriate]vaginal intercourse, cunnilingus, fellatio or anal intercourse between persons or insertion of the hand, finger or object into the anus or vagina, either by the defendant or by another person upon the defendants instruction, constitute(s) sexual penetration. Any amount of insertion, however slight, constitutes penetration; that is, the depth of insertion is not relevant.

[Choose the appropriate definition(s)]

The definition of vaginal intercourse is the penetration of the vagina, or[where appropriate]of the space between the labia majora or outer lips of the vulva.

1. State v. J.A., 337N.J. Super. 114 (App. Div. 2001). The Appellate Division upheld the charge given by the trial court in that case which included the following language which can be used if the circumstances of the specific case are appropriate: This means that if you find from all of the evidence presented beyond a reasonable doubt that there was [penile] penetration to the outer area of the vaginal opening, what is commonly referred to as the vaginal lips, that is sufficient to establish penetration under the law. AGGRAVATED SEXUAL ASSAULT (N.J.S.A. 2C:14-2a(4))

2. State v. Fraction, 206N.J. Super. 532, 535-36 (App. Div. 1985),certif. denied, 104N.J. 434 (1986). Penetration is not necessary for this act.

3. State in the Interest of S.M., 284N.J. Super. 611, 616-19 (App. Div. 1995). Penetration is not necessary for this act.

4. State v. Gallagher, 286N.J. Super. 1, 13 (App. Div. 1995),certif. denied, 146N.J. 569 (1996).

5. SeeN.J.S.A. 2C:39-1r for the definition of weapon and charge the appropriate definition.

The definition of cunnilingus is oral contact with the female sex organ.

The definition of fellatio is oral contact with the male sexual organ.

The definition of anal intercourse is penetration of any depth into the anus.

The second element that the State must prove beyond a reasonable doubt is that defendant acted knowingly. A person acts knowingly with respect to the nature of his/her conduct or the attendant circumstances if he/she is aware that the conduct is of that nature or that such circumstances exist or the person is aware of a high probability of their existence. A person acts knowingly with respect to a result of the conduct if he/she is aware that it is practically certain that the conduct will cause a result. Knowing, with knowledge, or equivalent terms have the same meaning.

Knowledge is a condition of the mind. It cannot be seen. It can only be determined by inferences from defendants 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 that the State produce witnesses to testify that an accused said that he/she had a certain state of mind when he/she did a particular thing. 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 conduct and from all he/she said and did at the particular time and place and from all surrounding circumstances established by the evidence.

The third element that the State must prove beyond a reasonable doubt is that at the time of the penetration, defendant was armed with a weapon or other object fashioned in such a manner as to lead the(name of victim)to reasonably believe it to be a weapon.[Charge jury on possession].

Weapon means anything readily capable of lethal use or of inflicting serious bodily injury.

AGGRAVATED SEXUAL ASSAULT (N.J.S.A. 2C:14-2a(4))

The fourth element that the State must prove beyond a reasonable doubt is that defendant threatened(name of victim)by word or gesture to use the weapon or object.

If you find that the State has proven beyond a reasonable doubt each of these four elements, then you must find the defendant guilty of the crime of aggravated sexual assault. On the other hand, if you find that the State has failed to prove any of these elements beyond a reasonable doubt, then you must find the defendant not guilty of aggravated sexual assault.

(Continue to lesser included offenses where required.)

http://www.njlaws.com/agsex2.html?id=5404&a=

AGGRAVATED CRIMINAL SEXUAL N.J.S.A. 2C:14-3a jury charge

AGGRAVATED CRIMINAL SEXUAL CONTACT WHILE ARMED

N.J.S.A. 2C:14-3a [2C:14-2a(4]model jury charge

Count ________ of the indictment charges the defendant with aggravated criminal sexual contact.

[READ COUNT OF INDICTMENT]

That section of our statutes provides in pertinent part:

An actor is guilty of aggravated criminal sexual contact if he commits an act of sexual contact with another person while armed with a weapon or any object fashioned in such a manner as to lead the other person to reasonably believe it to be a weapon and threatens by word or gesture to use the weapon or object.

In order to convict defendant of this charge, the State must prove the following elements beyond a reasonable doubt:

1. That defendant purposely committed an act of sexual contact with another person;

OR

1. That defendant purposely committed an act of sexual contact by touching himself/herself and the touching was in the view of (name of victim) who defendant knew was present;

2. That at the time of the sexual contact, defendant was [armed with a weapon] [armed with any object fashioned in such a manner as to lead the other person to reasonably believe it to be a weapon], and

3. That defendant threatened by word or gesture to use the [weapon] [object].

The first element that the State must prove beyond a reasonable doubt is that defendant purposely committed an act of sexual contact with (name of victim). Sexual contact means an intentional touching by (name of victim) or by the defendant, either directly or through clothing, of (name of victims) or defendants intimate parts for the purpose of degrading or humiliating (name of victim) or sexually arousing or gratifying defendant.

Intimate parts means[CHOOSE APPROPRIATE]sexual organs, genital area, anal area, inner thigh, groin, buttock or breast of a person. Here the State alleges that defendant committed an act of sexual contact by (describe conduct alleged).

AGGRAVATED CRIMINAL SEXUAL CONTACT WHILE ARMED N.J.S.A. 2C:14-3a [2C:14-2a(4)]

To find that defendant committed an act of criminal sexual contact, you must find beyond a reasonable doubt both that the touching was intentional and that it was done with the purpose of degrading or humiliating (name of victim) or sexually arousing or sexually gratifying the defendant.

Intentional means purposeful. 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 the attendant circumstances if he/she is aware of the existence of such circumstances or believes or hopes that they exist.

[WHEN DEFENDANT IS CHARGED WITH TOUCHING HIMSELF/HERSELF, ADD THE FOLLOWING: The State must prove beyond a reasonable doubt that the touching was in view of the victim whom the defendant knew to be present.1The State is not required to prove that (name of victim) actually observed or witnessed the alleged sexual contact. Rather, the State must prove that the alleged sexual contact occurred in the view of (name of victim). Field of vision is not limited to the visual direction in which the alleged victim is focused upon at the particular time when the alleged sexual contact is said to have occurred. Field of vision includes the areas that (name of victim) was capable of viewing.

2. The State must prove beyond a reasonable doubt that (name of victim) was present.

3. See N.J.S.A. 2C:39-1r for other definitions of weapon.

A person acts knowingly with respect to the nature of his/her conduct or the attendant circumstances if he/she is aware that the conduct is of that nature or that such circumstances exist or the person is aware of a high probability of their existence. A person acts knowingly with respect to a result of the conduct if he/she is aware that it is practically certain that the conduct will cause a result. Knowing, with knowledge, or equivalent terms have the same meaning.]

Purpose [and knowledge] is/are [a] condition[s] of the mind. [It] [They] cannot be seen. Often, [it] [they] can only be determined by inference from defendants conduct, words or acts.

1State v. Zeidell, 154N.J. 417 (1998).

2State v. Breitweiser, 373N.J. Super. 271, 276, 286-87 (App. Div. 2004).

AGGRAVATED CRIMINAL SEXUAL CONTACT WHILE ARMED N.J.S.A. 2C:14-3a [2C:14-2a(4)]

A state of mind is rarely susceptible of direct proof but must ordinarily be inferred from the facts. Therefore, it is not necessary that the State produce witnesses to testify that an accused said that he/she had a certain state of mind when he/she did a particular thing. 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 conduct and from all he/she said and did at the particular time and place and from all surrounding circumstances established by the evidence.

The second element that the State must prove beyond a reasonable doubt is that at the time of the contact, defendant was armed with a weapon. A weapon is anything readily capable of lethal use or of inflicting serious bodily injury.3In this case, the State alleges that defendant was armed with [describe weapon].

OR

The third element that the State must prove beyond a reasonable doubt is that defendant threatened by word or gesture to use the [weapon] [object].

If you find that the State has proven every element beyond a reasonable doubt, then you must find the defendant guilty of aggravated criminal sexual contact. If you find that the State has failed to prove any of these elements beyond a reasonable doubt, then you must find the defendant not guilty of aggravated criminal sexual contact.

http://www.njlaws.com/acs7.html?id=5418&a=

AGGRAVATED CRIMINAL SEXUAL CONTACT 2C:14-3a model jury

AGGRAVATED CRIMINAL SEXUAL CONTACT NJSA 2C:14-3a model jury

AGGRAVATED CRIMINAL SEXUAL CONTACT N.J.S.A. 2C:14-3a [2C:14-2a(2)]model jury charge Count _______ of the indictment charges the defendant with aggravated criminal sexual contact. [READ COUNT OF INDICTMENT] That section of our statutes provides in pertinent part : An actor is guilty of aggravated criminal sexual contact if he commits an act of sexual contact with a victim who is at least 13 years old but less than 16 years old and [CHOOSE APPROPRIATE] The actor is related to the victim by blood or affinity to the third degree, 1. First degree - - parents and children;  Second degree -- grandparents, grandchildren, brothers and sisters;  Third degree - - uncles, aunts, nieces, nephews, great grandparents, great grandchildren. See generally State v. Gaines, 36 N.J. Eq. 297 (E. & A. 1882). OR The actor has supervisory or disciplinary power over the victim because of his legal, professional or occupational status, OR The actor is a resource family parent, guardian, or stands in loco parentis within the household. In order to convict defendant of this charge, the State must prove the following elements beyond a reasonable doubt: 1. That defendant purposely committed an act of sexual contact with another person; OR 1. That defendant purposely committed an act of sexual contact by touching himself/herself and the touching was in the view of(name of victim)who defendant knew was present; AGGRAVATED CRIMINAL SEXUAL CONTACT N.J.S.A. 2C:14-3a [2C:14-2a(2] 2. That at the time of the sexual contact,(name of victim)was at least 13 years old but less than 16 years old; 3. That defendant is related to the victim by blood or affinity to the first, second or third degree; OR 3. That defendant had supervisory or disciplinary power over the victim because of his/her legal, professional or occupational status; OR 3. That defendant is a [resource family parent], [guardian] [stands in loco parentis, that is, in the place of the parents within the household]. The first element that the State must prove beyond a reasonable doubt is that defendant purposely committed an act of sexual contact with(name of victim). Sexual contact means an intentional touching by(name of victim)or by the defendant, either directly or through clothing, of(name of victims)or defendants intimate parts for the purpose of degrading or humiliating(name of victim)or sexually arousing or gratifying defendant. Intimate parts means[CHOOSE APPROPRIATE]sexual organs, genital area, anal area, inner thigh, groin, buttock or breast of a person. Here the State alleges that defendant committed an act of sexual contact by(describe conduct alleged). To find that defendant committed an act of criminal sexual contact, you must find beyond a reasonable doubt both that the touching was intentional and that it was done with the purpose of degrading or humiliating(name of victim)or sexually arousing or gratifying the defendant. Intentional means purposeful. 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 the attendant circumstances if he/she is aware of the existence of such circumstances or believes or hopes that they exist. [WHEN DEFENDANT IS CHARGED WITH TOUCHING HIMSELF/HERSELF,AGGRAVATED CRIMINAL SEXUAL CONTACT N.J.S.A. 2C:14-3a [2C:14-2a(2] The State is not required to prove that(name of victim)actually observed or witnessed the alleged sexual contact. Rather, the State must prove that the alleged sexual contact occurred in the view of(name of victim). Field of vision is not limited to the visual direction in which the alleged victim is focused upon at the particular time when the alleged sexual contact is said to have occurred. Field of vision includes the areas that(name of victim)was capable of viewing. The State must prove beyond a reasonable doubt that(name of victim)was present. AGGRAVATED CRIMINAL SEXUAL CONTACT N.J.S.A. 2C:14-3a [2C:14-2a(2] The third element that the State must prove beyond a reasonable doubt is that: [CHOOSE APPROPRIATE] Defendant is related to the victim by blood or affinity to the first, second or third degree. Here, the State alleges that defendant is related to(name of victim)by(type of relationship). OR Defendant had supervisory or disciplinary power over the victim because of his/her legal, professional or occupational status. In this case, the State alleges that defendant had [supervisory] [disciplinary] power over(name of victim)because of defendants status as(insert allegation). In determining whether defendant had [supervisory] [disciplinary] power over(name of victim), you must examine the entire context of the relationship between the defendant and(name of victim). To do so, you should consider the nature of the relationship between the defendant and the victim and whether the relationship was so unequal as to vest [supervisory] [disciplinary] power in the defendant. Among the factors you may consider are whether there was a significant disparity in ages and/or maturity level between the defendant and victim, whether the defendant offered advice and guidance to the(name of victim)on questions and issues outside the defendants role as __________ and the power or ability of the defendant to affect the(name of victim)future participation or success. 5. These factors are suggested by State v. Buscham, 360 N.J. Super. 346, 362 (App. Div. 2003), where the issue was defendants role as a coach. The parties should identify factors in their own particular case which would be significant for the jury to consider in determining whether the defendant had supervisory or disciplinary power over the victim. 6N.J.S.A. 30:4C-26.4. OR Defendant is a [resource family parent], [guardian] [stands in loco parentis within the household] of(name of victim). Resource family parent means any person other than a natural or adoptive parent with whom a child in the care, custody or guardianship of the Department of Children and Families is placed by the department, or with its approval, for care, and shall include any person with whom a child is placed by the Division of Youth and Family Services for the purpose of adoption until the adoption is finalized. An in loco parentis relationship occurs when a person acts as a temporary guardian or AGGRAVATED CRIMINAL SEXUAL CONTACT N.J.S.A. 2C:14-3a [2C:14-2a(2]

http://www.njlaws.com/agsex2.html?id=5404&a=

AGGRAVATED CRIMINAL SEXUAL model jury charge

AGGRAVATED CRIMINAL SEXUAL CONTACT WHILE ARMED

N.J.S.A. 2C:14-3a [2C:14-2a(4]model jury charge

Count ________ of the indictment charges the defendant with aggravated criminal sexual contact.

[READ COUNT OF INDICTMENT]

That section of our statutes provides in pertinent part:

An actor is guilty of aggravated criminal sexual contact if he commits an act of sexual contact with another person while armed with a weapon or any object fashioned in such a manner as to lead the other person to reasonably believe it to be a weapon and threatens by word or gesture to use the weapon or object.

In order to convict defendant of this charge, the State must prove the following elements beyond a reasonable doubt:

1. That defendant purposely committed an act of sexual contact with another person;

OR

1. That defendant purposely committed an act of sexual contact by touching himself/herself and the touching was in the view of (name of victim) who defendant knew was present;

2. That at the time of the sexual contact, defendant was [armed with a weapon] [armed with any object fashioned in such a manner as to lead the other person to reasonably believe it to be a weapon], and

3. That defendant threatened by word or gesture to use the [weapon] [object].

The first element that the State must prove beyond a reasonable doubt is that defendant purposely committed an act of sexual contact with (name of victim). Sexual contact means an intentional touching by (name of victim) or by the defendant, either directly or through clothing, of (name of victims) or defendants intimate parts for the purpose of degrading or humiliating (name of victim) or sexually arousing or gratifying defendant.

Intimate parts means[CHOOSE APPROPRIATE]sexual organs, genital area, anal area, inner thigh, groin, buttock or breast of a person. Here the State alleges that defendant committed an act of sexual contact by (describe conduct alleged).

AGGRAVATED CRIMINAL SEXUAL CONTACT WHILE ARMED N.J.S.A. 2C:14-3a [2C:14-2a(4)]

To find that defendant committed an act of criminal sexual contact, you must find beyond a reasonable doubt both that the touching was intentional and that it was done with the purpose of degrading or humiliating (name of victim) or sexually arousing or sexually gratifying the defendant.

Intentional means purposeful. 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 the attendant circumstances if he/she is aware of the existence of such circumstances or believes or hopes that they exist.

[WHEN DEFENDANT IS CHARGED WITH TOUCHING HIMSELF/HERSELF, ADD THE FOLLOWING:

The State must prove beyond a reasonable doubt that the touching was in view of the victim whom the defendant knew to be present.

1. The State is not required to prove that (name of victim) actually observed or witnessed the alleged sexual contact. Rather, the State must prove that the alleged sexual contact occurred in the view of (name of victim). Field of vision is not limited to the visual direction in which the alleged victim is focused upon at the particular time when the alleged sexual contact is said to have occurred. Field of vision includes the areas that (name of victim) was capable of viewing.

2. The State must prove beyond a reasonable doubt that (name of victim) was present.

A person acts knowingly with respect to the nature of his/her conduct or the attendant circumstances if he/she is aware that the conduct is of that nature or that such circumstances exist or the person is aware of a high probability of their existence. A person acts knowingly with respect to a result of the conduct if he/she is aware that it is practically certain that the conduct will cause a result. Knowing, with knowledge, or equivalent terms have the same meaning.]

Purpose [and knowledge] is/are [a] condition[s] of the mind. [It] [They] cannot be seen. Often, [it] [they] can only be determined by inference from defendants conduct, words or acts.

1. State v. Zeidell, 154N.J. 417 (1998).

2. State v. Breitweiser, 373N.J. Super. 271, 276, 286-87 (App. Div. 2004).

3. See N.J.S.A. 2C:39-1r for other definitions of weapon.

AGGRAVATED CRIMINAL SEXUAL CONTACT WHILE ARMED N.J.S.A. 2C:14-3a [2C:14-2a(4)]

A state of mind is rarely susceptible of direct proof but must ordinarily be inferred from the facts. Therefore, it is not necessary that the State produce witnesses to testify that an accused said that he/she had a certain state of mind when he/she did a particular thing. 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 conduct and from all he/she said and did at the particular time and place and from all surrounding circumstances established by the evidence.

The second element that the State must prove beyond a reasonable doubt is that at the time of the contact, defendant was armed with a weapon. A weapon is anything readily capable of lethal use or of inflicting serious bodily injury. In this case, the State alleges that defendant was armed with [describe weapon].

OR

The second element that the State must prove beyond a reasonable doubt is that at the time of the contact, defendant was armed with an object fashioned in such a manner as to lead (name of victim) to reasonably believe it to be a weapon. In this case, the State alleges that defendant was armed with [describe object].

The third element that the State must prove beyond a reasonable doubt is that defendant threatened by word or gesture to use the [weapon] [object].

If you find that the State has proven every element beyond a reasonable doubt, then you must find the defendant guilty of aggravated criminal sexual contact. If you find that the State has failed to prove any of these elements beyond a reasonable doubt, then you must find the defendant not guilty of aggravated criminal sexual contact.

http://www.njlaws.com/acs8.html?id=5419&a=

AGGRAVATED ASSAULT-SERIOUS BODILY INJURY N.J.S.A.2C:12-1b(1)

AGGRAVATED ASSAULT - SERIOUS BODILY INJURY. Model jury charge (N.J.S.A. 2C:12-1b(1) In Count _____of the indictment, the defendant(s) is (are) charged with the crime of aggravated assault in that (he/she/they) allegedly on ________in the ________ (Date) (Municipality) (READ PERTINENT LANGUAGE OF INDICTMENT) The defendant(s) is (are) accused of violating a section of our State statutes that reads as follows: A person is guilty of aggravated assault if he . . . (a)ttempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury. Under this statute, the defendant(s) can be found guilty if (he/she/they) EITHER caused serious bodily injury to another OR attempted to cause serious bodily injury to another. To find the defendant(s) guilty of aggravated assault for causing serious bodily injury to another, the State must prove beyond a reasonable doubt each of the following elements: 1. That the defendant(s) caused serious bodily injury to another; and 2. That the defendant(s) acted purposely or knowingly or acted recklessly under circumstances manifesting extreme indifference to the value of human life. The first element that the State must prove beyond a reasonable doubt is that the defendant(s) caused serious bodily injury to another. Serious bodily injury means bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. The second element that the State must prove beyond a reasonable doubt is that the defendant(s) acted purposely or knowingly or acted recklessly under circumstances manifesting extreme indifference to the value of human life. A person acts purposely with respect to the result of his/her conduct if it is his/her conscious object to cause such a result. A person acts purposely if he/she acts with design, with a specific intent, with a particular object or purpose, or if he/she means to do what he/she does (e.g., I did it on purpose). A person acts knowingly with respect to the result of his/her conduct if he/she is aware that it is practically certain that his/her conduct will cause such a result. A person acts recklessly with respect to the result of his/her conduct if he/she consciously disregards a substantial and unjustifiable risk that the result will occur from his/her conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actors conduct and the circumstances known to the actor, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actors situation. One is said to act recklessly if one acts with recklessness, with scorn for the consequences, heedlessly, fool-hardily. The phrase under circumstances manifesting extreme indifference to the value of human life does not focus on the state of mind of the actor, but rather on the circumstances under which you find that he/she acted. If, in light of all the evidence, you find that the conduct of the defendant(s) resulted in a probability as opposed to a mere possibility of serious bodily injury, then you may find that (he/she/they) acted under circumstances manifesting extreme indifference to the value of human life. In determining whether the defendant(s) acted purposely or knowingly or acted recklessly under circumstances manifesting extreme indifference to the value of human life, you may consider the nature of the act(s) itself(themselves) and the severity of the resulting injury (injuries). (NOTE: When the actual victim is one other than the intended victim, the jury should be instructed that it is immaterial that the actual victim was not the intended victim). If you find that the State has proved each element beyond a reasonable doubt, then you must find the defendant(s) guilty. All jurors do not have to agree unanimously concerning which form of serious bodily injury aggravated assault is present so long as all believe that it was one form of serious bodily injury or the other. However, for a defendant to be guilty of serious bodily injury aggravated assault, all jurors must agree that the defendant either knowingly or purposely or recklessly under circumstances manifesting extreme indifference to the value of human life caused serious bodily injury to (insert victims name). If you find that the State has failed to prove any element beyond a reasonable doubt, then you must find the defendant(s) not guilty of the charge of aggravated assault in that (he/she/they) caused serious bodily injury to another. As I previously instructed you, the defendant(s) can be found guilty if (he/she/they) EITHER caused serious bodily injury to another OR attempted to cause serious bodily injury to another. To find the defendant(s) guilty of attempting to cause serious bodily injury to another, the State must prove beyond a reasonable doubt that the defendant(s) purposely[2] attempted to cause serious bodily injury to another. If you find beyond a reasonable doubt that the defendant(s) attempted to cause serious bodily injury, it does not matter whether such injury actually resulted. The law provides that a person is guilty of attempt if, acting purposefully, he/she: (select appropriate section) 1. Engaged in conduct that would constitute the offense if the attendant circumstances were as a reasonable person would believe them to be; (or) 2. Did (or omitted to do) anything with the purpose of causing serious bodily injury to another without further conduct on his/her part. This means that the defendant(s) did something designed to cause serious bodily injury without having to take any further action. (or) 3. Did (or omitted to do) anything that, under the circumstances as a reasonable person would believe them to be, was an act (or omission) constituting as substantial step in a course of conduct planned to culminate in his/her commission of the crime. The step taken must be one that is strongly corroborative of the defendants criminal purpose. The accused must be shown to have had a firmness of criminal purpose in light of the step(s) he/she had already taken. These preparatory steps must be substantial and not just very remote preparatory acts. Serious bodily injury means bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. A person acts purposely with respect to the result of his/her conduct if it is his/her conscious object to cause such a result. A person acts purposely if he/she acts with design, with a specific intent, with a particular object or purpose, or if he/she means to do what he/she does (e.g., I did it on purpose). If you find that the State has proved beyond a reasonable doubt that the defendant(s) attempted to cause serious bodily injury to another, then you must find the defendant(s) guilty. If you find that the State has failed to prove beyond a reasonable doubt that the defendant(s) attempted to cause serious bodily injury to another, then you must find the defendant(s) not guilty. [1] In State v. Curtis, 195 N.J. Super. 354, 364-65 (App. Div. 1984), certif. den., 99 N.J. 212 (1984), the Court found, in the context of aggravated manslaughter, that the difference between recklessness under circumstances manifesting extreme indifference to human life and mere recklessness is the difference between the probability as opposed to the possibility that a certain result will occur. The Supreme Court endorsed Curtis in State v. Breakiron, 108 N.J. 591, 605 (1987). The case law has applied the Curtis probability standard to the aggravated-assault statute. State v. Scher, 278 N.J. Super. 249, 272 (App. Div. 1994), certif. den., 140 N.J. 276 (1995); State v. Oriole, 243 N.J. Super. 688, 693 (Law Div. 1990). Please note that in the aggravated-assault statute the Legislature has used the term extreme indifference to the value of human life while the aggravated-manslaughter statute speaks in terms of extreme indifference to human life. Therefore, the indifference referred to in the aggravated-assault statute would appear not to relate to whether the victim lives or dies but rather to the value of the victims life. [2] When a person actually causes serious bodily injury, it does not matter whether his mental state is purposeful, knowing or reckless (under circumstances manifesting extreme indifference to the value of human life). When, however, the person attempts to cause, but does not cause, serious bodily injury, he must act purposefully. Cf. State v. McAllister, 211 N.J. Super. 355, 362 (App. Div. 1986). [3] State v. Fornino, 223 N.J. 531, 538 (App. Div. 1988), certif, den., 111 N.J. 570 (1988); cert. den., 488 U.S. 859, 109 S.Ct. 152, 102 L.Ed. 2d 123 (1988). [4] Where appropriate, renunciation should be charged. N.J.S.A. 2C:5-1(d). [5] In second degree aggravated assault cases involving the use of a deadly weapon, it may be appropriate to instruct the jury on the following lesser offenses: third degree aggravated assault, N.J.S.A. 2C:12-1b(2); fourth degree aggravated assault, N.J.S.A. 2C:12-1b(3); and simple assault, N.J.S.A. 2C:12-1a(1) and (2). State v. Villar, 292 N.J. Super. 320, 326-330 (App. Div. 1996), revd. o.g., 150 N.J. 503, 517 n. 4 (1997). See also, State v. Sloane, 111 N.J. 293, 301 (1988). These offenses may be charged as lesser offenses even though third degree aggravated assault, fourth degree aggravated assault and a(2) disorderly persons simple assault contain an element (a deadly weapon) that is not an element of second degree aggravated assault. State v. Villar, supra; State v. Sloane, supra. When these lesser offenses are to be charged, the trial court and counsel should construct a sequence of the lesser offenses to be charged. State v. Villar, 150 N.J. at 517 n. 4. http://www.njlaws.com/assaultseriousinjury1.html?id=5372&a=

AGGRAVATED ASSAULT-Bodily injury with weapon (recklessly)

AGGRAVATED ASSAULT - BODILY INJURY WITH DEADLY WEAPON^[1](RECKLESSLY) Model jury charge(N.J.S.A. 2C:12-1b(3))

Count _____ of the indictment charges defendant with aggravated assault in that he/she allegedly

(Read appropriate count of Indictment)

Defendant is accused of violating a section of our law that reads as follows:

A person is guilty of aggravated assault if he recklessly causes bodily injury to another with a deadly weapon.

To find the defendant guilty of recklessly causing bodily injury to another with a deadly weapon, the State must prove beyond a reasonable doubt the following elements:

1. that the defendant caused bodily injury to another; and

2. that the defendant caused the bodily injury by use of a deadly weapon; and

3. that the defendant acted recklessly.

The first element that the State must prove beyond a reasonable doubt is that defendant caused bodily injury to another.

Bodily injury is defined as physical pain, illness, or any impairment of the physical condition of another.^[2]

The second element that the State must prove beyond a reasonable doubt is that the defendant caused the bodily injury by use of a deadly weapon.

Causation has a special meaning under the law. To establish causation, the State must prove two elements, each beyond a reasonable doubt:

First, that but for the defendants conduct, (name of victim) would not have sustained bodily injury.

Second, the bodily injury sustained by (name of victim) must have been within the design or contemplation of the defendant. If not, it must involve the same kind of injury or harm as that designed or contemplated, and must also not be too remote, too accidental in its occurrence or too dependent on anothers volitional act to have a just bearing on the defendants liability or on the gravity of his/her offense. In other words, the State must prove beyond a reasonable doubt that the bodily injury sustained by (name of victim) was not so unexpected or unusual that it would be unjust to find the defendant guilty of aggravated assault.

A deadly weapon is any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used is known to be capable of producing death or serious bodily injury. Serious bodily injury means bodily injury that creates a substantial risk of death or that causes serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

The third element that the State must prove beyond a reasonable doubt is that the defendant acted recklessly. A person acts recklessly when he/she is aware of and consciously disregards a substantial and unjustifiable risk. The risk must be of such a nature and degree that, considering the nature and purpose of defendants conduct and the circumstances known to defendant, his/her disregard of that risk involves a gross deviation from the standard of conduct that a reasonable person would follow in the actors situation. One is said to act recklessly if one acts with recklessness, with scorn for the consequences, heedlessly, foolhardily.

Reckless is a condition of the mind that cannot be seen and that can 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 thathe/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.

[CHARGE WHERE APPROPRIATE]

[When the actual victim was one other than the intended victim, add:

It is immaterial that (name the victim) was or was not the intended victim.]^[3]

[CHARGE IN ALL CASES]

If you find that the State has proved each element beyond a reasonable doubt, then you must find defendant guilty. If you find that the State has failed to prove any element beyond a reasonable doubt, then you must find defendant not guilty.

---

^[1] This charge is inapplicable to assaults involving a motor vehicle. See State v. Parker, 198 N.J. Super. 272, 282-83 (App. Div. 1984), certif. denied, 99 N.J. 239 (1985). Utilize the Model Jury Charges for assault by auto, N.J.S.A. 2C:12-1c(1) for cases involving reckless conduct and a motor vehicle.

[2] N.J.S.A. 2C:11-1a.

^[3] N.J.S.A. 2C:2-3d.

http://www.njlaws.com/assaultrecklessly.html?id=5374&a=

AGGRAVATED ASSAULT-Bodily Injury with weapon (purposely)

AGGRAVATED ASSAULT - BODILY INJURY WITH DEADLY WEAPON(PURPOSELY OR KNOWINGLY) Model jury charge(N.J.S.A. 2C:12-1b(2))

Count _____ of the indictment charges defendant with aggravated assault in that he/she allegedly

(Read appropriate count of Indictment)

Defendant is accused of violating a section of our law that reads as follows:

A person is guilty of aggravated assault if he attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon.

Under this statute, the defendant can be found guilty if he/she EITHER caused bodily injury to another with a deadly weapon OR attempted to cause bodily injury to another with a deadly weapon.

To find the defendant guilty of causing bodily injury to another with a deadly weapon, the State must prove beyond a reasonable doubt the following elements:

1. that the defendant caused bodily injury to another; and

2. that the defendant caused the bodily injury by use of a deadly weapon; and

3. that the defendant acted purposely or knowingly.

The first element that the State must prove beyond a reasonable doubt is that defendant caused bodily injury to another.

Bodily injury is defined as physical pain, illness, or any impairment of the physical

http://www.njlaws.com/assaultpurposely.html?id=5373&a= 

AGGRAVATED ASSAULT-BODILY INJURY N.J.S.A. 2C:12-1b(1) AGGRAVATED ASSAULT - SERIOUS BODILY INJURY N.J.S.A. 2C:12-1b(1) In Count ____of the indictment, the defendant(s) is (are) charged with the crime of aggravated assault in that (he/she/they) allegedly on ____in the _____ (Date) (Municipality) (READ PERTINENT LANGUAGE OF INDICTMENT) The defendant(s) is (are) accused of violating a section of our State statutes that reads as follows: A person is guilty of aggravated assault if he . . . (a)ttempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury. Under this statute, the defendant(s) can be found guilty if (he/she/they) EITHER caused serious bodily injury to another OR attempted to cause serious bodily injury to another. To find the defendant(s) guilty of aggravated assault for causing serious bodily injury to another, the State must prove beyond a reasonable doubt each of the following elements: 1. That the defendant(s) caused serious bodily injury to another; and 2. That the defendant(s) acted purposely or knowingly or acted recklessly under circumstances manifesting extreme indifference to the value of human life. The first element that the State must prove beyond a reasonable doubt is that the defendant(s) caused serious bodily injury to another. Serious bodily injury means bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. The second element that the State must prove beyond a reasonable doubt is that the defendant(s) acted purposely or knowingly or acted recklessly under circumstances manifesting extreme indifference to the value of human life. A person acts purposely with respect to the result of his/her conduct if it is his/her conscious object to cause such a result. A person acts purposely if he/she acts with design, with a specific intent, with a particular object or purpose, or if he/she means to do what he/she does (e.g., I did it on purpose). A person acts knowingly with respect to the result of his/her conduct if he/she is aware that it is practically certain that his/her conduct will cause such a result. A person acts recklessly with respect to the result of his/her conduct if he/she consciously disregards a substantial and unjustifiable risk that the result will occur from his/her conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actors conduct and the circumstances known to the actor, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actors situation. One is said to act recklessly if one acts with recklessness, with scorn for the consequences, heedlessly, fool-hardily. The phrase under circumstances manifesting extreme indifference to the value of human life does not focus on the state of mind of the actor, but rather on the circumstances under which you find that he/she acted. If, in light of all the evidence, you find that the conduct of the defendant(s) resulted in a probability as opposed to a mere possibility of serious bodily injury, then you may find that (he/she/they) acted under circumstances manifesting extreme indifference to the value of human life. In determining whether the defendant(s) acted purposely or knowingly or acted recklessly under circumstances manifesting extreme indifference to the value of human life, you may consider the nature of the act(s) itself(themselves) and the severity of the resulting injury (injuries). (NOTE: When the actual victim is one other than the intended victim, the jury should be instructed that it is immaterial that the actual victim was not the intended victim). If you find that the State has proved each element beyond a reasonable doubt, then you must find the defendant(s) guilty. All jurors do not have to agree unanimously concerning which form of serious bodily injury aggravated assault is present so long as all believe that it was one form of serious bodily injury or the other. However, for a defendant to be guilty of serious bodily injury aggravated assault, all jurors must agree that the defendant either knowingly or purposely or recklessly under circumstances manifesting extreme indifference to the value of human life caused serious bodily injury to (insert victims name). If you find that the State has failed to prove any element beyond a reasonable doubt, then you must find the defendant(s) not guilty of the charge of aggravated assault in that (he/she/they) caused serious bodily injury to another. As I previously instructed you, the defendant(s) can be found guilty if (he/she/they) EITHER caused serious bodily injury to another OR attempted to cause serious bodily injury to another. To find the defendant(s) guilty of attempting to cause serious bodily injury to another, the State must prove beyond a reasonable doubt that the defendant(s) purposely[2] attempted to cause serious bodily injury to another. If you find beyond a reasonable doubt that the defendant(s) attempted to cause serious bodily injury, it does not matter whether such injury actually resulted. The law provides that a person is guilty of attempt if, acting purposefully, he/she: (select appropriate section) 1. Engaged in conduct that would constitute the offense if the attendant circumstances were as a reasonable person would believe them to be; (or) 2. Did (or omitted to do) anything with the purpose of causing serious bodily injury to another without further conduct on his/her part. This means that the defendant(s) did something designed to cause serious bodily injury without having to take any further action. (or) 3. Did (or omitted to do) anything that, under the circumstances as a reasonable person would believe them to be, was an act (or omission) constituting as substantial step in a course of conduct planned to culminate in his/her commission of the crime. The step taken must be one that is strongly corroborative of the defendants criminal purpose. The accused must be shown to have had a firmness of criminal purpose in light of the step(s) he/she had already taken. These preparatory steps must be substantial and not just very remote preparatory acts. Serious bodily injury means bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. A person acts purposely with respect to the result of his/her conduct if it is his/her conscious object to cause such a result. A person acts purposely if he/she acts with design, with a specific intent, with a particular object or purpose, or if he/she means to do what he/she does (e.g., I did it on purpose). If you find that the State has proved beyond a reasonable doubt that the defendant(s) attempted to cause serious bodily injury to another, then you must find the defendant(s) guilty. If you find that the State has failed to prove beyond a reasonable doubt that the defendant(s) attempted to cause serious bodily injury to another, then you must find the defendant(s) not guilty. [1] In State v. Curtis, 195 N.J. Super. 354, 364-65 (App. Div. 1984), certif. den., 99 N.J. 212 (1984), the Court found, in the context of aggravated manslaughter, that the difference between recklessness under circumstances manifesting extreme indifference to human life and mere recklessness is the difference between the probability as opposed to the possibility that a certain result will occur. The Supreme Court endorsed Curtis in State v. Breakiron, 108 N.J. 591, 605 (1987). The case law has applied the Curtis probability standard to the aggravated-assault statute. State v. Scher, 278 N.J. Super. 249, 272 (App. Div. 1994), certif. den., 140 N.J. 276 (1995); State v. Oriole, 243 N.J. Super. 688, 693 (Law Div. 1990). Please note that in the aggravated-assault statute the Legislature has used the term extreme indifference to the value of human life while the aggravated-manslaughter statute speaks in terms of extreme indifference to human life. Therefore, the indifference referred to in the aggravated-assault statute would appear not to relate to whether the victim lives or dies but rather to the value of the victims life. [2] When a person actually causes serious bodily injury, it does not matter whether his mental state is purposeful, knowing or reckless (under circumstances manifesting extreme indifference to the value of human life). When, however, the person attempts to cause, but does not cause, serious bodily injury, he must act purposefully. Cf. State v. McAllister, 211 N.J. Super. 355, 362 (App. Div. 1986). [3] State v. Fornino, 223 N.J. 531, 538 (App. Div. 1988), certif, den., 111 N.J. 570 (1988); cert. den., 488 U.S. 859, 109 S.Ct. 152, 102 L.Ed. 2d 123 (1988). [4] Where appropriate, renunciation should be charged. N.J.S.A. 2C:5-1(d). [5] In second degree aggravated assault cases involving the use of a deadly weapon, it may be appropriate to instruct the jury on the following lesser offenses: third degree aggravated assault, N.J.S.A. 2C:12-1b(2); fourth degree aggravated assault, N.J.S.A. 2C:12-1b(3); and simple assault, N.J.S.A. 2C:12-1a(1) and (2). State v. Villar, 292 N.J. Super. 320, 326-330 (App. Div. 1996), revd. o.g., 150 N.J. 503, 517 n. 4 (1997). See also, State v. Sloane, 111 N.J. 293, 301 (1988). These offenses may be charged as lesser offenses even though third degree aggravated assault, fourth degree aggravated assault and a(2) disorderly persons simple assault contain an element (a deadly weapon) that is not an element of second degree aggravated assault. State v. Villar, supra; State v. Sloane, supra. When these lesser offenses are to be charged, the trial court and counsel should construct a sequence of the lesser offenses to be charged. State v. Villar, 150 N.J. at 517 n. 4. http://www.njlaws.com/assaultseriousinjury.html?id=5370&a=