Revised 5/16/05
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 actor’s 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 actor’s 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 serous 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 victim’s 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.
That the defendant(s)
purposely
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 defendant’s
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.
In State v.
Curtis, 195 N.J. Super. 354, 364-365 (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 victim’s life.
When a person
actually causes serious bodily injury, it does not
matter whether his/her 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/she must act
purposefully. Cf. State v. McAllister, 211
N.J. Super. 355, 362 (App. Div. 1986).
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).
Where appropriate,
renunciation should be charged. N.J.S.A.
2C:5-1(d).
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), rev’d. 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.
